BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120004301 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his undesirable discharge.

2.  The applicant states he was railroaded by the unit first sergeant and company commander.  He was railroaded out of his specialist five (SP5) rank and he did not get paid for the last 6 months of service.  He was told his discharge would be upgraded by the Department of the Army. 

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant enlisted in the Regular Army (RA) on 16 August 1967 and held military occupational specialty (MOS) 36K (Wireman).  He was assigned to Germany on 14 January 1968.  While in Germany, on 21 April 1968, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted in the RA on 22 April 1968 in pay grade E-4; this was the highest pay grade that he achieved. 

3.  He completed three additional periods of foreign service as follows:

* Vietnam, 19 February 1970 to 18 February 1971
* Germany, 23 February 1971 to 19 May 1971
* Vietnam, 10 July 1971 to 3 April 1972

4.  His awards and decorations included the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and three Overseas Service Bars. 

5.  On 3 September 1969, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 30 August to 3 September 1969.

6.  On 5 September 1969, he was convicted by a special court-martial of wrongfully appropriating an automobile, the property of another Soldier.  The Court sentenced him to a forfeiture of pay and an admonishment.  The convening authority approved the sentence at a later date. 

7.  His records reveal an extensive history of acceptance of NJP under the provisions of Article 15 of the UCMJ on/for:

* 30 September 1969, failing to go at the time prescribed to his appointed place of duty
* 14 July 1970, disobeying a lawful order, wrongfully appropriating a truck, and failing to go at the time prescribed to his appointed place of duty (he was reduced to private first class/E-3)
* 29 May 1973, being AWOL from 23 April to 1 May 1973
* 20 August 1973, being AWOL from 23 July to 1 August 1973, disobeying a lawful order, and failing to go at the time prescribed to his appointed place of duty
* 5 December 1973, failing to go at the time prescribed to his appointed place of duty
* 25 January 1974, being AWOL from 23 to 24 January 1974 (reduced to private/E-2)
* 3 February 1974, failing to go at the time prescribed to his appointed place of duty twice

8.  On 24 January 1974, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his extensive history of NJP, recurring misconduct, unsatisfactory conduct and efficiency, and non-response to counseling.  The applicant was provided a copy of this bar and he elected not to submit a statement on his own behalf.  The bar was ultimately staffed through the chain of command and approved by the appropriate approving official.

9.  The complete facts and circumstances surrounding his discharge action (notification, acknowledgment, and chain of command's recommendation) are not available for review with this case; however, his official records contain:

	a.  An endorsement by a general officer (presumably the separation authority) approving the discharge action and ordering the applicant's discharge from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unfitness, the issuance of an Undesirable Discharge Certificate, and reduction to the lowest enlisted grade. 

	b.  A duly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 9 May 1974 under the provisions of Army Regulation 635-200 with an undesirable discharge, in pay grade E-1.  This form also shows he completed 5 years, 11 months, and 14 days of creditable active military service during this period and he had 30 days of time lost.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

	a.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records reveal an extensive history of misconduct that included eight instances of NJP, multiple instances of AWOL, a court-martial, and a bar to reenlistment.  It appears he was provided counseling and/or multiple opportunities for rehabilitation by various members of his chain of command, but he failed to respond constructively.  

2.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his service records contain an endorsement by the separation authority approving what appears to be a discharge action recommended by the chain of command.  Additionally, his 
DD Form 214 shows he was discharged on 9 May 1974 under the provisions of Army Regulation 635-200 with an undesirable discharge.  

3.  It is unclear how the applicant was railroaded out of his rank.  He neither explains how nor provides evidence of his contention.  The highest rank/pay grade he achieved was pay grade E-4 and he was discharged in pay grade E-1.  His service record reveals a period of military service marred with misconduct from beginning to end.  

4.  Additionally, he neither explained what pay he did not receive in the last 
6 months of his service nor did he provide evidence of this contention. 

5.  In the absence of evidence to the contrary, it is presumed his administrative separation was accomplished in compliance with applicable regulations at the time, with no procedural errors which would have jeopardized his rights.  It is also presumed the separation authority appropriately directed the issuance of an undesirable discharge based on his overall record during the period under review.  

6.  Based on the available record his service appears not to have met the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X_  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120004301



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120004301



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1